A preliminary injunction limited to the San Francisco Unified School District was issued in 1972. Larry P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972), aff'd 502 F.2d 963 (9th Cir. 1974). The statewide order was entered on December 13, 1974, and in January 1975 the state imposed a moratorium on all I.Q. testing for E.M.R. placements.

This is an appeal from an order granting, in part, a motion for a preliminary injunction. 28 U.S.C. § 1292(a)(1) gives us jurisdiction. The district judge's Order and Memorandum, which embodies his findings of fact and conclusions of law, are reported in P. v. Riles, N.D.Cal., 1972, 343 F. Supp. 1306. We affirm.

The district court certified the plaintiff class as consisting "of all black San Francisco schoolchildren who have been classified as mentally retarded on the bases of IQ test results" and granted appellees' motion for a preliminary injunction. Larry P. v. Riles, 343 F. Supp. 1306 (N.D.Cal. 1972). Defendants appealed from this judgment, which this court affirmed.

See Castro v. Beecher, 459 F.2d 725, 733 (1st Cir. 1972); Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff'd en banc sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969); P. v. Riles, 343 F. Supp. 1306 (N.D.Cal. 1972). See also Armstead v. Starkville Municipal Separate School District, 461 F.2d 276 (5th Cir. 1972).

The 1972 Larry P. decision, and the resulting 1974 appellate decision, specifically applied to intelligence quotient ("I.Q.") testing. Larry P. v. Riles, 343 F. Supp. 1306, 1314-15 (N.D. Cal. 1972), aff'd, 502 F.2d 963 (9th Cir. 1974). Further, the 1979 Larry P. decision, and the resulting 1984 appellate decision, also concerned I.Q. testing.

Id. See also P. v. Riles, 343 F. Supp. 1306 (N.D.Cal. 1973), aff'd, 502 F.2d 963 (9th Cir. 1974); D. Kirp, W. Buss, P. Kuriloff, "Legal Reform of Special Education: Empirical Studies and Procedural Proposals," 62 Cal.L.Rev. 40, 49-50 (1974).

Since the stigmatization of plaintiffs as alleged in the complaint does not constitute a violation of the Fourteenth Amendment or 42 U.S.C. § 1983 and 1985(3) the state statute which permits such stigmatization to occur does not, by virtue of that permission, violate the constitution. In support of their stigmatization theory plaintiffs cite the cases of Hobson v. Hanson, 269 F. Supp. 401 (D.D.C. 1967), aff'd Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969); Larry P. v. Riles, 343 F. Supp. 1306 (N.D.Calif. 1972), aff'd, 502 F.2d 963 (9th Cir. 1974); Board of Education of Cincinnati v. H.E.W., 396 F. Supp. 203 (S.D.Ohio 1975); Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). In Hobson, unlike the present case, the court found that the District of Columbia School System was discriminating against both black and poor persons.

In our view it is well established that students may be assigned on the basis of ability to separate classes or tracks provided that this is not a subterfuge for racial discrimination. See, e. g., George v. O'Kelly, 448 F.2d 148, 150 (5 Cir., 1971); Murray v. West Baton Rouge Parish Sch. Bd., 472 F.2d 438, 444 (5 Cir., 1973); Miller v. School Dist. No. 2, Clarendon, S.C., 256 F. Supp. 370, 375 (D.S.C., 1966); Swann v. Charlotte-Mecklenburg Bd. of Ed., 300 F. Supp. 1358, 1367 (W.D.N.C., 1969); Moore v. Tangipahoa Parish Sch. Bd., 304 F. Supp. 244, 249 (D.La., 1969), app. dism'd, 421 F.2d 1407 (5 Cir., 1969); P. v. Riles, 343 F. Supp. 1306, 1312 (N.D. Cal., 1972); also see: United States v. Norcome, 375 F. Supp. 270, 286, 287-288 (D.D.C., May 21, 1974), aff'd, 162 U.S. App.D.C. 99, 497 F.2d 686 (1974). The leading decision is still Judge Skelly Wright's opinion, Hobson v. Hansen, 269 F. Supp. 401, 442-492 (D.D.C., 1967), aff'd, sub nom Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969).

This shift of burden is common in other cases where discriminatory practices appear to have occurred, particularly where one party has the ability to produce the relevant facts. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 432, 28 L.Ed.2d 158, 91 S.Ct. 849 (1971) (employment requirements); Gaston County v. United States, 395 U.S. 285, 293, 23 L.Ed.2d 309, 89 S.Ct. 1720 (1969) (voting rights); United States v. St. Louis-San Francisco Ry., 464 F.2d 301, 307-08 (8th Cir. 1972) (employment); United States v. Carpenters Local 169, 457 F.2d 210, 214 (7th Cir. 1972) (employment); Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189, 192 (4th Cir 1966) (employment); Northcross v. Board of Educ., 333 F.2d 661, 664 (6th Cir. 1964) (education); Burner v. Washington, 399 F. Supp. 44, 47-48 (D.D.C. 1975) (municipal services); Larry P. v. Riles, 343 F. Supp. 1306, 1309-10 (N.D. Cal. 1972) (educational tests); Hobson v. Hansen, 269 F. Supp. 401, 417, 426, 429 (D.D.C. 1967) (education); see generally Hernandez v. Texas, 347 U.S. 475, 480, 98 L.Ed. 866, 74 S.Ct. 667 (1954) (jury service). I recognize that in Swain v. Alabama, 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824 (1965), in which one Justice specially concurred, one concurred in the result, and three Justices dissented, the majority refused to limit the use of peremptory challenges when they were used to remove Blacks from the petit jury.

While the adequacy of existing standardized tests to evaluate educational accomplishment is open to serious doubt, see, e.g., McDermott Klein, supra at 424-428; cf. Larry P.v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972); Note, "Legal Implications of the Use of Standardized Tests in Employment Education," 68 Colum. L. Rev., 691 (1968); but see, Berkelmanv. San Francisco Unified School District, 501 F.2d 1264 (9 Cir. 1974), the establishment of a statewide assessment program is a necessary first step toward implementing standards of the type demanded by the education clause.